Citation Nr: 0724487
Decision Date: 08/08/07 Archive Date: 08/20/07
DOCKET NO. 06-03 828 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUES
1. Whether new and material evidence has been received to
reopen a claim for service connection for a low back
disorder.
2. Entitlement to service connection for a low back disorder.
REPRESENTATION
Appellant represented by: The American Legion
WITNESS AT HEARING ON APPEAL
The veteran
ATTORNEY FOR THE BOARD
Jason A. Lyons, Associate Counsel
INTRODUCTION
The veteran had active military service from February 1976 to
February 1982.
This case comes to the Board of Veterans' Appeals (Board)
from a November 2004 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in St.
Petersburg, Florida, which determined that new and material
evidence had not been submitted to reopen a previously denied
claim for service connection for a low back disorder
(claimed as low back pain).
Pursuant to the appeal of this decision, the November 2005
statement of the case (SOC) issued by the RO indicated that
the previously denied claim for service connection was being
reopened; the RO then reconsidered and denied it on the
merits. Nonetheless, the Board also must itself determine
whether new and material evidence has been received to reopen
this claim before proceeding further because this preliminary
determination affects the Board's legal jurisdiction to reach
the underlying claim to adjudicate it de novo. See Barnett
v. Brown, 83 F.3d 1380 (Fed. Cir. 1996).
In May 2007, in support of his claim, the veteran testified
at a hearing at the RO before the undersigned Veterans Law
Judge (VLJ) of the Board (also referred to as a "travel
Board" hearing).
For the reasons discussed below, the Board, like the RO, is
reopening the veteran's claim and then remanding it to the RO
via the Appeals Management Center (AMC) in Washington, DC,
for further development and consideration. VA will notify
him if further action is required on his part.
The Board also notes that, in an August 2004 statement, the
veteran raised the additional issue of his entitlement to a
total disability rating based on individual unemployability
(TDIU). This additional claim, however, is not currently
before the Board. See 38 C.F.R. § 20.200 (2006). It has not
been adjudicated by the RO in the first instance, much less
denied and timely appealed, so it is referred to the RO for
appropriate development and consideration.
FINDINGS OF FACT
1. In a February 1987 decision, the Board denied the veteran's
original claim for service connection for a low back
disorder. He was properly notified of the Board's
determination later that month.
2. Additional evidence since has been obtained, however,
relating to an unestablished element required to establish
the claim for service connection for a low back disorder and
presents a reasonable possibility of substantiating this
claim.
CONCLUSIONS OF LAW
1. The Board's February 1987 decision denying service
connection for a low back disorder is final. 38 U.S.C.A. §
7104 (West 2002); 38 C.F.R. §§ 3.104, 20.1100 (2006).
2. Some of the additional evidence received since that
decision is new and material and, therefore, sufficient to
reopen this claim. 38 U.S.C.A. § 5108 (West 2002);
38 C.F.R. § 3.156 (2006).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veterans Claims Assistance Act (VCAA), codified at 38
U.S.C.A. §§ 5100, 5102, 5103A, 5106, 5107, 5126 (West 2002),
became effective on November 9, 2000. Implementing
regulations were created, codified at 38 C.F.R. §§ 3.102,
3.156(a), 3.159 and 3.326 (2006).
VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38
C.F.R. § 3.159(b) must: (1) inform the claimant about the
information and evidence not of record that is necessary to
substantiate the claim; (2) inform the claimant about the
information and evidence that VA will seek to provide; (3)
inform the claimant about the information and evidence the
claimant is expected to provide; and (4) request or tell the
claimant to provide any evidence in the claimant's possession
that pertains to the claim. Pelegrini v. Principi, 18 Vet.
App. 112, 120-121 (2004) ("Pelegrini II"). This "fourth
element" of the notice requirement comes from the language
of 38 C.F.R. § 3.159(b)(1).
As the Board is reopening the claim and directing further
development of it before deciding it on the merits, there is
no need at this juncture to determine whether there has been
compliance with the VCAA's duty to notify and assist.
Rather, this would be premature because further measures are
necessary for VA to comply with this law, and this will occur
on remand. See Bernard v. Brown, 4 Vet. App. 384 (1993).
See, too, Mayfield v. Nicholson, 19 Vet. App. 103, 128
(2005), reversed and remanded, 444 F.3d 1328 (Fed. Cir.
2006), affirmed, 20 Vet. App. 537 (2006).
Furthermore, the Board need not discuss just yet the
ramifications of the decision of the U. S. Court of Appeals
for Veterans Claims (Court) in the consolidated appeal of
Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); aff'd
sub nom. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir.
2007). In this relatively recent precedent case, the Court
addressed the applicability of the VCAA to situations,
as here, where the veteran has filed a petition to reopen a
previously denied claim for service connection and the
petition to reopen is granted, and the underlying claim for
service connection on the merits is being remanded for
additional development.
According to the Dingess/Hartman holding, VCAA notice
requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)
apply to all five elements of a "service connection" claim.
And as previously defined by the courts, those five elements
are: (1) veteran's status; (2) existence of a disability;
(3) connection between military service and the disability;
(4) degree of disability; and (5) effective date of the
disability. Upon receipt of an application for
"service connection" (or even, as here, a petition to
reopen a previously denied and unappealed claim for service
connection), VA must review the information and evidence
presented with the claim and provide the veteran notice of
what information and evidence not previously provided, if
any, will assist in substantiating or is necessary to
substantiate the elements of the claim as reasonably
contemplated by the application. The Dingess/Hartman holding
went on to indicate this includes notice that a disability
rating and an effective date for the award of benefits will
be assigned if service connection is awarded. See, too,
Dunlap v. Nicholson, 21 Vet. App. 112 (2007).
In this particular case at hand, it warrants mention only
that through its April 2006 correspondence sent to the
veteran, the RO has informed him as to the holding in the
Dingess/Hartman decision and notified him of the
applicability of this precedent case to the disposition of
his claim.
Petition to Reopen
Service connection may be established for any current
disability that is the result of a disease or injury
incurred or aggravated during service. 38 U.S.C.A. §§ 1110,
1131 (West 2002); 38 C.F.R. § 3.303(a) (2006).
Direct service connection may not be granted without medical
evidence of a current disability, medical or, in certain
circumstances, lay evidence of in-service incurrence or
aggravation of a disease or injury; and medical evidence of
a nexus between the claimed in-service disease or injury and
the present disease or injury. See, e.g., Boyer v. West, 210
F.3d 1351, 1353 (Fed. Cir. 2000) ("A veteran seeking
disability benefits must establish . . . the existence of a
disability [and] a connection between the veteran's service
and the disability . . ."). See also Maggitt v. West, 202
F.3d 1370, 1375 (Fed. Cir. 2000); D'Amico v. West, 209 F.3d
1322, 1326 (Fed. Cir. 2000).
Through a prior February 1987 decision upon the veteran's
claim, the Board considered initially his service medical
records (SMRs) which indicated that in October 1981 he had
complained of continuing low back pain for about one year.
His January 1982 separation examination report stated that he
had low back pain secondary to a muscle strain, with an onset
one year earlier. The Board further observed, however, that
no treatment for back problems was obtained in the first
three years following service discharge (in February 1982).
A June 1985 VA examination had revealed a diagnosis of lumbar
strain; x-rays of the lumbar spine were normal, and range of
motion was also relatively normal. A corresponding
neurological examination resulted in no diagnosis made. The
Board concluded that the weight of the medical evidence did
not establish that he had a chronic back disability that was
incurred or aggravated in military service -- i.e., that the
claimed disorder had a causal nexus to service. As for the
lower back symptoms that had manifested in service, this was
found to represent an acute and transitory condition, with no
permanent residual disability.
The Board notified the veteran of this February 1987 decision
denying his claim that same month, and at that time the
Board's decision was the final step in the appellate process.
The Court was not enacted until the following year,
in November 1988.
This, in turn, means there must be new and material evidence
since the Board's February 1987 decision to reopen this
claim and warrant further consideration of it on a de novo
basis. 38 U.S.C.A. § 5108 (West 2002), 38 C.F.R. § 3.156
(2006); see also Hodge v. West, 155 F.3d 1356 (Fed. Cir.
1998).
The amendments to 38 C.F.R. § 3.156, in particular, resulting
from the VCAA, only apply prospectively to applications to
reopen that were received on or after August 29, 2001. Here,
the veteran's petition to reopen the previously denied claim
for service connection was received in August 2004, after
that cutoff date. So the amended version of § 3.156(a),
providing a new definition of new and material evidence,
applies to his current appeal.
According to the amended version of 38 C.F.R. § 3.156(a)
(2006), new evidence means evidence not previously submitted
to agency decisionmakers. Material evidence means existing
evidence that, by itself or when considered with previous
evidence of record, relates to an unestablished fact
necessary to substantiate the claim. New and material
evidence can be neither cumulative nor redundant of the
evidence of record at the time of the last prior final denial
of the claim sought to be reopened, and must raise a
reasonable possibility of substantiating the claim.
Materiality contemplates evidence that "tend[s] to prove
the merits of the claim as to each essential element that
was a specified basis for that last final disallowance of
the claim." Evans v. Brown, 9 Vet. App. 273, 284 (1996).
The Court in Evans held that the evidence to be considered
is that added to the record since the last final denial on
any basis. When determining whether evidence is new and
material, the "credibility of the evidence is to be
presumed." Justus v. Principi, 3 Vet. App. 510, 513
(1992). In Kutscherousky v. West, 12 Vet. App. 369 (1999),
the Court held that the prior holding in Justus that the
credibility of the evidence is to be presumed was not
altered by the Federal Circuit's decision in Hodge.
Since the February 1987 Board decision that denied the
veteran's original claim, several additional items of
evidence have been included in his claims file. This new
evidence consists of the reports of May 1987 and October 2004
VA orthopedic examinations (primarily pertaining to the
evaluation of a bilateral knee disability); VA outpatient
clinical records dated from May 2004 through February 2005;
as well as several personal statements from the veteran
himself, and his recent Board hearing testimony. For
purposes of the analysis of whether new and material evidence
has been submitted, the above evidence should be reviewed to
determine if it establishes the element of medical causation,
the prior basis of the Board's denial. See Watson v. Brown,
4 Vet. App. 309, 314 (1993) ("A determination of service
connection requires a finding of the existence of a current
disability and a determination of a relationship between that
disability and an injury or disease incurred in service.").
See, too, Duenas v. Principi, 18 Vet. App. 512, 516 (2004).
Upon considering the above-referenced findings in view of the
criteria for demonstrating causation, the reports of VA
outpatient clinical treatment provide particularly relevant
information as to that requirement. Reports from the
Bay Pines VA Medical Center (VAMC) as of November 2004
initially show consultation for low back pain, with no
immediate discussion of etiology. Subsequently, however, in
January 2005 a physician after having noted the veteran's
report of back pain since service, and then examining him,
stated the impression of low back pain, probably lumbar spine
degenerative disc disease (DDD) since 1981. It was
recommended that the veteran seek an MRI of the spine. An
MRI later that month revealed a "small non-specific
structure just inferior to the L1-2 disc space on the
right, consistent with either an old disc extrusion or
an atypical osteopyte," and L4-5 degenerative changes.
The VA physician's clinical impression provided in his
January 2005 report, is clearly supportive to
current claim on the issue of nexus. And while admittedly,
that opinion is substantially grounded in the veteran's self-
reported history, without review of objective medical
background, when ascertaining whether evidence is new and
material the credibility of the evidence is presumed.
See Justus, 3 Vet. App. at 513. A more thorough inquiry into
the probative value of the medical evidence, including in
view of its underlying evidentiary foundation, is not
conducted until the claim is reopened and readjudicated de
novo (i.e., on the merits). Of further significance, is the
MRI report that month which showed a possible old disc
injury; this finding is non-specific as to the duration and
cause of injury, although it does substantiate the
reasonable possibility that the injury referred to had an
onset in proximity to the veteran's service.
Accordingly, the Board finds that new and material evidence
has been received that warrants reopening the claim for
service connection for a low back disorder, and
reconsideration of the underlying claim for service
connection on the merits. See, e.g., Hickson v. West, 11
Vet. App. 374, 378 (1998).
ORDER
The petition to reopen the claim for service connection for a
low back disorder is granted, subject to the Board's
further development of the evidence concerning this claim in
the remand that follows.
REMAND
In connection with the readjudication of the veteran's claim
on the merits, further evidentiary development by
the RO (AMC) is required. This should consist of scheduling
the veteran for a VA medical examination to determine the
current status of the claimed orthopedic disability and
furthermore, to assess whether it is considered to have had
any objective relationship to service. Prior VA orthopedic
examinations, including that conducted in June 1985 (and of
record at the time of the original denial of the claim, since
reopened above) diagnosed a lumbar strain, although with no
corresponding opinion offered as to the likely cause of that
condition. Therefore, an opinion regarding medical causation
at this stage would be particularly relevant to resolving the
present claim.
The medical background pertaining to the disability in
question, includes from SMRs an October 1981 report
indicating the veteran presented with a complaint of ongoing
low back pain over the previous year, which had an onset due
to a lifting injury in connection with his military
occupational duties. The assessment was of musculoskeletal
lower back pain. The report of the veteran's January 1982
examination for purposes of separation sets forth a
physician's statement as to lower back pain that was
secondary to muscle strain about one-year previously, which
became problematic only after heavy exercises.
On VA orthopedic examination in June 1985, the veteran was
diagnosed as having a lumbar strain. A corresponding
neurological examination at that time did not indicate the
presence of any disorder. A July 1985 evaluation by a
private orthopedist was unable to establish any diagnosis
pertaining to the lumbar spine region. Subsequent VA
examinations concerned primarily claimed disorders of the
bilateral knees. However, as previously mentioned, based
upon the VA outpatient records on file there is a January
2005 physician's report stating an impression of lower back
pain, probable lumbar spine DDD, since 1981.
In evaluating the relative weight to be afforded this
opinion, it is significant that the VA physician's
assessment considered the veteran's self-reported history,
but had not actually reviewed any documentation from service,
or even shortly thereafter. See e.g., Reonal v. Brown, 5
Vet. App. 458, 460 (1993) (medical opinions relating a
current disability to military service should be based upon
an accurate factual premise, so as to have probative value).
See, too, Bielby v. Brown, 7 Vet. App. 260, 268 (1994)
(emphasizing expert review of the veteran's record in
offering a well-supported medical opinion). So further
examination to obtain a more definitive and factually
grounded opinion as to the etiology of the disorder claimed
is warranted, to include following review of the January 2005
physician's statement and MRI performed that month. See
38 U.S.C.A. § 5103A(d) (West 2002); 38 C.F.R.
§ 3.159(c)(4)(2006) (VA will provide a medical examination or
obtain a medical opinion based upon a review of the evidence
of record if VA determines it is necessary to decide the
claim).
Accordingly, this case is REMANDED to the RO (via the AMC)
for the following development and consideration:
1. Obtain all additional records
pertaining to the veteran's outpatient
treatment at the Bay Pines VAMC since
February 2005, and associate all
records obtained with his claims file.
2. Schedule the veteran for a VA
examination concerning his claimed low
back disorder.
The designated examiner should
initially determine the nature and
extent of the present claimed low back
condition. The examiner should then
provide an opinion as to whether it is
at least as likely as not
(i.e., 50 percent or greater
probability) the veteran has a current
low back disorder that is etiologically
related to military service -- taking
into consideration all objective
findings during service, as well as his
assertions pertaining to in-service
injury. Additionally, please indicate
whether the veteran has an
orthopedic condition involving
arthritis, which was manifested
to at least a compensable degree within
one-year of his discharge from service
(in February 1982).
If no opinion can be rendered, without
resorting to pure speculation, explain
why this is not possible.
Also, in order to facilitate making
these important determinations, the
examiner should review the relevant
medical history in the veteran's claims
file, including a complete copy of this
remand, as well as the January 2005
statement of a VA physician at
Bay Pines VAMC, and MRI report from
later that month.
3. Review the claims file. If any
development is incomplete, take
corrective action before
readjudication. Stegall v. West, 11
Vet. App. 268 (1998).
4. Then readjudicate de novo the claim
for service connection for a low back
disorder in light of the additional
evidence obtained. If the claim is not
granted to the veteran's satisfaction,
send him and his representative a
supplemental statement of the case
(SSOC) and give them time to respond to
it before returning the claim to the
Board for further appellate
consideration.
The veteran has the right to submit additional evidence and
argument concerning the claim the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim
must be afforded expeditious treatment.
The law requires that all claims that are remanded by the
Board of Veterans' Appeals or by the United States Court of
Appeals for Veterans Claims for additional development or
other appropriate action must be handled in an expeditious
manner. See The Veterans Benefits Act of 2003, Pub. L. No.
108-183, § 707(a), (b), 117 Stat. 2651 (2003) (to be codified
at 38 U.S.C. §§ 5109B, 7112).
______________________________________________
Keith W. Allen
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2006).
Department of Veterans Affairs